But, Hey, At Least We Got Some Statistics

Danny Berler’s case has been decided. I first wrote about it here and, after a summer of legal briefs and arguments, the opinion came out in early August.

At its core, Judge Anthony Epstein’s district court opinion from D.C. does two things: 1) it denies access to Berler’s adoption agency files; and 2) it unseals and releases Berler’s adoption court files. Neither result was surprising.

I’m not particularly surprised by the first result, in which the court ruled that Berler “does not have a right to access the records of the Jewish Social Services Agency (‘JSSA’) . . . .” I’m not surprised because, for the most part, adoption agency records are often the hardest records for an adoptee to get—for a number of reasons, not least of which is that an adoption agency is almost always a private organization, is typically not a party to the court case, and is generally thought to be beyond direct control by the court. It doesn’t mean I agree with the court’s decision in Berler’s case. It’s just that I’m not surprised by it.

I’m also not surprised by the second result, the unsealing and release of Berler’s court records. First, it’s the right decision given D.C. law. Plus, by the time the case came to the court in June, Berler had learned the identities of his parents, and the adoption agency had agreed that the court should release its records.

What’s troubling, though, is that Judge Epstein seems to believe that the records should be released primarily because the adoption agency agreed to their release. In his approach, it appears it was not enough that Berler—and other adult adoptees like him—deserve the court records by operation of D.C. law. Rather, Berler succeeded because the adoption agency had ultimately agreed that the court’s records should be released to him.

The irony in the way Judge Epstein unsealed and released Berler’s court records is tough to ignore, if not impossible to reconcile. While on the one hand the court said that it did not have the legal wherewithal to order Jewish Social Services to release its own agency records to Berler, Judge Epstein certainly acknowledged the agency’s continuing power over the release of the court’s own sealed records. While Judge Epstein determined agency records to be private, confidential, and beyond the control of the court, he simultaneously believed that the court’s own sealed records were subject to the same private adoption agency’s recommendation for or against release. Ultimately, Judge Epstein’s reliance on an adoption agency’s opinion on the issue—and not on the right of an adult adoptee to request and receive records independently of agency consent— demonstrates the breadth of agency power in these cases.

Because the issue over Berler’s sealed court records was resolved by JSSA’s agreement to release the records, no further decision was necessary. Legally, the issue was moot, kaput, over. Nevertheless, the judge plowed ahead with a 54 page opinion about how the D.C. courts generally handle break seal cases and, ultimately, how adoption agency power, combined with birth parent privacy interests, will continue to trump an adult adoptee’s legitimate and basic request for truth. I’ll come back to these issues in more detail in my next post.

Got Stats?

The court’s opinion provides some limited statistics that shed light on the typically obscure court process of unsealing court records, at least in the District of Columbia. Judge Epstein noted in his opinion that, from January 2011 through December 2015, adult adoptees (as well as birth and adoptive relatives) filed 638 break seal cases, or about 128 cases each year. In the single year of 2014, for which the judge took a closer look:

134 people filed break seal petitions—130 by people representing themselves and four by people represented by lawyers.

Adult adoptees filed nearly three-fourths of all petitions in 2014. Biological parents (21 of the 134, or 16%); adoptive parents (13 of the 134, or 10%); and a sister of an adoptee (1 of the 134, or less than one percent) filed the remaining petitions.

Only 90 of the 134 cases moved forward through referral to the adoption agency, the process D.C. courts regularly use to dispose of break seal cases. The other 44 petitions were either filed in the wrong court (28 of the 44) or sought a copy of non-identifying information already in the court’s files (6 of the 44).

Of the 90 cases in 2014 that proceeded by referral to an adoption agency, 18 are still considered open, with no results noted. The remaining 72 have been resolved as follows:

Twenty-nine of the 72 cases (40%) led to locating either a birth parent or the adoptee—depending on who filed the petition—and arranging for “mutually consensual contact.” Only if there was consent, however, did anyone receive any identifying information.

Eleven cases (15%) involved an adult adoptee who sought identifying information but the birth parent declined contact. Presumably, and this is not explicitly stated by the court, it meant that neither the court nor the agency provided any identifying information to the adoptee because the agency lacked the consent of the birth parent.

Four cases (5%) involved a biological parent who sought identifying information but the adoptee declined any contact.

Five cases (5%) involved the agency providing only non-identifying information to the adoptee. It is not clear from the court’s opinion why this was not always provided, as it is required by D.C. law if it is requested.

In four cases (5%), the agency could not locate a birth parent or the adoptee. Again, though not stated in Judge Epstein’s opinion, it is presumed that no identifying information was released in these cases.

In six cases (6%), the petitioner decided “not to pursue the case.”

While these statistics are interesting, they are colored entirely by the prism of search and reunion, or what the agency and court refer rather euphemistically as “mutually consensual contact.” Indeed, in the introductory portion of his opinion, Judge Epstein states that D.C. courts have used the same break seal procedure for many years “in cases in which an adoptee seeks to break the seal of an adoption case in order to establish contact with his biological parents.” Scant mention is made of a request simply for information or, more significantly, of the right to obtain fundamental information without seeking reunion. The court dismisses such requests and, in an aside, indicates only that “most adoptees” want to establish contact with birth parents and that a “large majority” of those petitioning want either non-identifying medical information or reunion with their biological parents. Fair enough. But what about many other adoptees, like Berler and me, who seek only their records, who wish only to receive basic information to which they are entitled? What about the correct way to view this, which is a request for knowledge—basic knowledge—and not a request for reunification? For people like us, it apparently doesn’t matter. We are presumed first to be seeking a reunion with our moms, even if those moms are dead or long gone.

The lesson from this is clear. And it is a lesson we learn and relearn all the time, whether implicitly or explicitly: seek reunion and you shall lose. Argue about it all you want to the court and to the state but bring reunion up at your own peril because, once you mention that you wish to find and contact a parent, you will be parceled away into that netherland of requiring birth parent consent before you receive any useful information whatsoever. Berler didn’t bring it up—he argued that he was simply entitled to the records. But he did get somewhat chided by the court for mentioning “possible reunion” in his first break seal petition from 2004. Even the mere possibility of reunion—which is always true no matter your motivation for seeking records or even in thinking about your past—conjurs up that solid and false bogeyman of birth parent “confidentiality.”

In the end, and blessed by the agreement of the adoption agency, Berler received copies of the following sealed records from the court, which are the court’s records from 1964 and 1965:

[icon name=”paperclip”] Petition for Adoption of Infant
[icon name=”paperclip”] Consent to Adoption [by the executive director of JSSA]
[icon name=”paperclip”] Report of Jewish Social Service Agency
[icon name=”paperclip”] Further Report of Jewish Social Service Agency

Berler also received a copy of the court’s docket sheet as well as prior JSSA reports to the court about the agency’s unsuccessful (and rather dubious) efforts in the last decade to locate and contact Berler’s birth parents.

Only one court record—JSSA’s initial report to the court in 1964—contained any identifying information: the name of Berler’s mother. No other identifying information, and no original birth certificate, existed in the court file.

Though he requested all of his records—and it took a costly two-year legal battle to get to this point—in the end Berler appears to have received a single document containing identifying information about one of his parents. While identity is what almost all of us seek, it shows how adoptees still pay an uncommonly high price to pursue, and get, just a few fundamental pieces of our origin.

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A revolting decision based on Byzantine thinking couched in the cloak of a colossal refusal to comprehend the fundamental human right to ownership of one’s personal identity. Future eyes will look back and see this case as a testament to the misogyny and paternalism that continues to infect our society. In the meantime, technology advances. DNA is testing will rendering these kinds of court cases, and related statutes, as the pointless and poisonous arrows that they are. Ugh. Waxing poetic this morning. Thanks for the great report and discussion of the statistics, Greg.

Thank you for reporting on this – along with the statistics. There have been a few people who have argued in New York that “there is a mechanism” for adoptees to receive identifying information – so adoptees don’t need an OBC bill, right?

My favorite NY case involves a man who needed certified copies of his OBC so he could claim Hungarian citizenship. His birthmother was deceased but had signed a waiver. His adoptive parents were also deceased. He had a legitimate interest in claiming his Hungarian citizenship jus sanguinis. He did win but, like in this case, the judge went on and on about how extraordinary his case was.

Karen is correct. DNA testing will render all of this moot and it will truly only be about that “Simple Piece of Paper”. Given that most adoptees will not find their father’s name on their OBC, we’re all going to get more truthful information from a half-teaspoon of spit than we will from our OBCs.

The era of deep-sixing adoptee rights is coming to an end, whether Judge Epstein can face it or not. As others have commented, DNA has totally changed adoption’s ‘secrets and lies’ landscape. And whether the junk yard dogs admit it or not, most of the alleged “confidentiality” was not designed with mothers in mind. The truth is that, for many decades, the wagons have been circled around the elusive fathers, who have even managed to have their identities omitted from birth certificates.
So why would a father object to an adoptee having his original birth certificate if his name didn’t appear on it? The answer to that became obvious to me years ago when I testified before a House Subcommittee on behalf of a national mutual consent registry bill (which, in retrospect, I’m glad failed), sponsored by Michigan Senator Carl Levin. The bulk of the testimony against such a registry was that, unless both parents registered, one parent could “out” the other. In other words, if the mother registered and contact was made, she could (and probably would) tell on ‘daddy.’
Daddies’ refusal to man up in the era of societal condemnation of ‘unwed pregnancy’ accounts for the bulk of adoption relinquishments. But DNA is smoking the daddies out even more easily and frequently than mommies. So all that is left of the empty shell of ‘promised confidentiality’ is an obligation for judges and legislators to ‘man up’ to the responsibility of restoring to adoptees the rights that never should have been taken from them decades ago. Note: It is not a NEW right, but the RESTORATION of an old right!

One thing I will never understand – if the adoptee has identified both biological parents AND even has their permission or death certificates, why are the courts refusing to unseal the files? Most judges will still require “good cause”, and “because it’s mine” isn’t good enough. The response I’ve been hearing is “Why do you need it if you know everything already?”

I’m also wondering about cases where DNA testing has “smoked out” the daddy (h/t to Jo for that image) and he isn’t the man named in the file. Would we still need the permission of someone whose only connection to the case is that Momma named him as the culprit?

I can’t wait to see the faces of those long-time opponents to RESTORING access when they realize that a half teaspoon of spit will do more to identify bio family than any OBC.

I will write more about the opinion in a bit but, yes, it’s crazy that you don’t get records automatically once you know identities. Even a prior appellate case in DC said that disclosure of agency records was appropriate “[w]here the child, now very much an adult, requests disclosure only to herself and with the consent of all others affected . . . .”

This court in Berler seemed initially open to that approach. But the court’s ultimate opinion shied away in the end from automatic disclosure in such cases and instead appeared hung up on requiring agency involvement in 1) locating a parent, whether dead or alive; and 2) getting that parent’s consent—not just to disclosure—but to contact.

Thank you for publicizing the opinion. Obviously I was pretty distraught when it came through and it’s taken me a month or so to let it settle in. The judge did, in fact, give me the records contained in the court jacket. There was only one document that I did not already have from my mom’s filing cabinet in the basement, and that was the report from the agency documenting its findings that my adoptive parents were worthy of me, and one reference to my birth mother’s name and some of the circumstances around my conception and decision to place me for adoption. Neither my birth father’s name, nor her husband’s name (my legal father) were given in that report. The file did not contain a copy of my original birth certificate. By giving me what I asked for but not in the way I asked for it, the judge also shut down my ability to appeal. That opportunity still exists for people who don’t know their birth parents’ identities and I would be glad to talk about how one might formulate his or her request to maximize appeal opportunities.

My goal was to set precedent for unsealing records in a way that I believed the law allowed for. That was not to be the case. In his 54 page opinion, the judge essentially took us back to 1952 and earlier, and said he was only unsealing records because I knew their identities. People who know their birth parents’ identities will likely be able to get their files. People who don’t will continue to be out of luck.

After a month of letting this settle in, I am now ready to do what I didn’t want to do then or even now. I am ready to try to take this on legislatively. If you all know of any adoptees or birth mothers who are interested in joining this legislative effort, please reach out to me. I recently met the Mayor’s deputy chief of staff who told me they are always looking for fresh legislative ideas, and I happen to also know that at least one of the members of Council is an adoptive parent who would be open to a visit. So, again, as I start to lay out a strategy, please feel free to spread the word and reach out to me.

Thank you, Greg, for your continued support and efforts, and for so eloquently expressing many of the feelings and frustrations adoptees experience. It’s important and necessary.